DECISION ON INTERLOCUTORY APPEAL CONCERNING
ADMISSION OF RECORD OF INTERVIEW OF THE ACCUSED
FROM THE BAR TABLE

__________________________________________

Counsel for the Prosecution:

Mr. Phillip Weiner
Ms. Sureta Chana
Mr. David Re
Mr. Manoj Sachdeva

Counsel for the Defence:

Mr. Peter Morrisey
Mr. Guénaël Mettraux

1. The Appeals Chamber of the International Tribunal
for the Prosecution of Persons Responsible for Serious
Violations of International Humanitarian Law Committed
in the Territory of the Former Yugoslavia since
1991 (“Appeals Chamber” and “Tribunal
”, respectively) is seized of an interlocutory appeal
in the case of Prosecutor
v. Sefer Halilovic, which is currently pending
in Trial Chamber I of the Tribunal. On 20 June 2005,
the Trial Chamber issued the “Decision on Admission
into Evidence of Interview of the Accused” admitting
into evidence from the bar table the record of the
Prosecution’s interview of Mr. Halilovic (“Appellant”).1
On 30 June, the Trial Chamber granted the Appellant’s
request for certification to appeal the Impugned Decision.2
On 6 July 2005, the Appellant filed his appeal brief,3
and on 18 July 2005, the Prosecution filed its response.4

2. Prior to the filing of its Response,5 the
Prosecution filed a motion requesting the Appeals Chamber
to order the Appellant to re-file his Appeal brief
on grounds that the Appellant’s Brief exceeded
the limits described in the Practice Direction on
the Lengths of Briefs and Motions (“Practice
Direction”).6

3. The Appellant responded to that Motion to Re-File
on 11 July 2005.7 He
argues that the Appeal Brief falls within the Practice
Direction limits, and that the annex includes an
up-to-date procedural background and “re-prints” of
relevant paragraphs of the Defence Response filed
at trial, which are consistent with the Practice
Direction.8

4. The Appeals Chamber did not find it necessary to
dispose of the Prosecution’s Motion
to Re-File prior to the due date of the Prosecution’s
filing of its Response to the Appellant’s Brief.
The brief filed by the Appellant is in fact 30 pages
and therefore conforms to the Practice Direction in
terms of length of briefs. However, parts of the annexes
include factual and legal arguments, contrary to Clause
( C) 6 of the Practice Direction. Consequently, the
Appeals Court will disregard any factual or legal
arguments in the annexes and will not deem them relevant
in deciding the outcome of this Appeal.

Standard of Review

5. It is well established in the jurisprudence of the
Tribunal that an interlocutory appeal challenging
the exercise of discretion by a Trial Chamber is
not a hearing
de novo. In reviewing the exercise of a Trial
Chamber’s discretion, the
issue is not whether the Appeals Chamber agrees with
the decision of the Trial Chamber but whether the
Trial Chamber has abused its discretion in reaching
that decision. For the Appeals Chamber to intervene
in a Trial Chamber’s exercise of discretion, the Appellant
must demonstrate that the Trial Chamber misdirected
itself either as to the principle to be applied or
as to the law which is relevant to the exercise of
the discretion or that the Trial Chamber gave weight
to extraneous or irrelevant considerations, failed
to give weight or sufficient weight to relevant considerations,
or made an error as to the facts upon which it has
exercised its discretion, or that its decision was
so unreasonable and plainly unjust that the Appeals
Chamber is able to infer that the Trial Chamber must
have failed to exercise its discretion properly.9

Grounds for Appeal

6. In this Appeal, the Appellant claims that the Trial
Chamber erred in the means by which it permitted
the record of interview to be received into evidence
in an unqualified manner; by failing to find that
the Appellant’s participation in the interview was
rendered involuntary on the basis of inducements
offered by the Prosecution; by failing to consider
that the circumstances in which the interview was
conducted rendered the interview unreliable; and
by failing to take into account the fact that at
the time of the interview the Appellant was not represented
by competent counsel. The Appellant argues that
the Trial Chamber should have held that the record
of interview was inadmissible or exercised its discretion
pursuant to Rule 89(D) and excluded the record of
interview to ensure the fair trial of the Appellant.

(i) Manner of Tendering the Record of Interview

7. The Appellant claims that the Trial Chamber erred
by, over the Defence’s objection, permitting the
record of interview to be tendered from the bar table-that
is, by allowing it to be submitted directly by counsel
into evidence, rather than introducing it during
a witness’s testimony
so that the witness could identify it and testify
as to its foundation, and so that the opposing party
could contest its foundation and admissibility.10 The
Appellant contends that it was improper to permit
his prior statements to be introduced in this manner
when he had chosen not to testify in his own defence.11

8. The Appellant concedes, however, that tender from
the bar table may be permitted if in compliance with
Rule 89(B). That Rule provides that:

in cases not otherwise provided for in this Section,
a Chamber shall apply rules of evidence which will
best favour a fair determination of the matter before
it and are consonant with the spirit of the Statute
and general principles of law.

9. However, the Appellant says that application of
this Rule would make the record of interview inadmissible
due to the alleged conduct of the Prosecution in
persuading the Appellant to agree to give the interview.
He says that the failure of the Prosecution to adduce
evidence to rebut his allegations was a breach by
the Prosecution of the best evidence rule as laid
out in the Trial Chamber’s guidelines on the conduct
of the Trial.12 The
Appellant argues that the Trial Chamber erred when
it failed to take this factor into account.13

10. The Appellant claims further that the admission
of the record of interview conflicts with the principle
supporting the orality of debates which underpins
the procedure of the Tribunal. He argues that while
the principle is not absolute, it is the guiding
principle in determining the admissibility of evidence
and that exceptions to that principle in the Rules
have been interpreted narrowly.14
He says that the admission of the record of interview
from the bar table deprived him of an opportunity
to challenge its reliability and to elicit evidence
relevant to the conditions of its admissibility and
thus violated his right to confront the evidence presented
against him.15

11. The Appellant also claims that the Trial Chamber’s
reliance upon the Kvocka
Appeals Chamber Judgement as precedent for the proposition
that a party can tender a record of interview or statement
of an accused person from the bar table regardless
of whether that accused has given evidence and or
agreed to that record being tendered, is erroneous.16 He
argues that it has been the general practice of the
Tribunal not to admit prior statements of an accused
where he or she has chosen not to testify, unless the
accused agrees to that admission. Furthermore, the
Appellant claims that the understanding of the Senior
Trial Attorney in Kvocka to tender the record
was the same point made by the Pre-Trial Judge in this
case, Judge Kwon, who stated that he did not think
the Appellant’s
statement could be used as evidence unless the Appellant
testified.17

12. The Appellant claims further that the Trial Chamber’s
reliance upon the Simic
and Krstic cases as supporting authority
is also erroneous. In both cases, the accused agreed
to the record of interview being tendered by the Prosecution,
and in the Krstic case, the record of interview
was used by the Prosecution to elicit evidence from
witnesses, including the accused Krstic. This has not
been the situation in the present case.18
The Appellant claims that his position is consistent
with the practice of the Tribunal in other cases. 19

13. In Response, the Prosecution argues that the Appellant
fails to specify how the Trial Chamber erred. It
says that the Trial Chamber applied the relevant
principles enunciated by the Appeals Chamber Kvocka in
determining that the “relevant
safeguards and procedural protections had been applied
and that the evidence was reliable”. It argues
that this is consistent with Rule 89(B) of the Rules
and as such no legal error has been shown.20 The
Prosecution refutes the Appellant’s arguments concerning
the principle of orality, stating that oral debate
is not necessarily required in admitting documents
into evidence and that the Trial Chamber did not err
in finding that orality was not required upon it being
satisfied that the interview was voluntary and the
evidence reliable.21 It
further argues that the Trial Chamber’s reliance on
the Kvocka, Simic and Krstic
precedents was solely for the purpose of establishing
that there was no prohibition on admitting into evidence
records of interview from the bar table as asserted
by the Appellant. Accordingly, the Prosecution claims
that no legal error has been established by the Appellant. 22

Analysis

14. With respect to the Appellant’s first argument,
that the Rules do not permit a record of an interview
with the accused to be tendered into evidence unless
the accused has chosen to testify or has consented
to the tender, the Appeals Chamber does not agree that
the Rules impose such a categorical restriction. The
Rules instead grant Trial Chambers considerable discretion
on evidentiary matters; in particular Rule 89(C) states
that a “Chamber may admit any relevant evidence which
it deems to have probative value”. Here the Trial
Chamber was satisfied that the record of interview
was relevant and probative, and the Appellant does
not dispute these points. The Trial Chamber therefore
had the discretion to admit the record, at least so
long as doing so did not violate any of the specific
restrictions outlined in the remainder of the Rules,
nor the general principle of Rule 89(B) requiring application
of “
rules of evidence which will best favour a fair determination
of the matter before it and are consonant with the
spirit of the Statute and the general principles of
law”.

15. The Appeals Chamber does not find that fairness
or the “spirit of the Statute
and general principles of law” require that the admissibility
of an accused’s prior
statements turn on whether he has agreed to testify
or consented to the admission. The Appellant’s argument
to the contrary rests implicitly on the right of an
accused against self-incrimination. An accused has
the right to refuse to give statements incriminating
himself prior to trial, and he had the right to refuse
to testify at trial. But where the accused has freely
and voluntarily made statements prior to trial, he
cannot later on choose to invoke his right against
self-incrimination retroactively to shield those statements23
from being introduced, provided he was informed about
his right to remain silent before giving this statement;
there is, however, a presumption that he knows about
this right if he is assisted by counsel. Nor does
the Appellant point to any provision of the Rules
or rules of customary international law that specifically
imposes such a restriction on the admission of an
accused’s prior statements. The Appeals Chamber
therefore concludes that no such rules exists.

16. The Appellant’s second complaint, that the method
of introducing the evidence (via tender from the bar
table) breached the principle of orality, is misplaced.
There is to be sure, a general principle that witnesses
before the Tribunal should give their evidence orally
rather than have their statement entered into the record. The principle has its origin in the Roman law requirement
that parties before a tribunal make submissions orally
rather than in writing, and exists in various forms
in common and civil law traditions today. The principle
of orality and its complement, the principle of immediacy,
act as analogues to common law hearsay rules and are
meant to ensure the adversarial nature of criminal
trials, and the right of the accused to confront witnesses
against him.

17. However, the principle of orality, as reflected
in the Rules, is not an absolute restriction, but
instead simply constitutes a preference for the oral
introduction of evidence. Rule 89(F) states that
a “Chamber may receive the evidence of a witness
orally or, where the interests of justice allow,
in written form.24
The Tribunal’s jurisprudence recognises that the interests
of justice may often allow for the admission of prior
statements of the accused. The principle of orality
is weaker in application to the accused’s own statements
than to the testimony of other witnesses. As the
Appeals Chamber explained in the Kvocka case,
the rules of evidence applicable to witness testimony
do not always apply to the statements of an accused: “StChere
is a fundamental difference between an accused, who
might testify as a witness if he so chooses, and
a witness”. 25
The principle of orality is intended principally to
ensure the accused’s right to
confront the witnesses against him, and in this respect
its logic is not applicable to the accused’s own statements.
Moreover, to the extent that the principle of orality
ensures that in-court witness testimony (generally
understood to be more reliable) is used instead of
those witnesses’ out-of-court statements where possible, that logic is also less applicable to the accused’s
statements, for the accused may, as the Appellant
did, refuse to testify.

18. Finally, the Appellant argues that the Trial Chamber
breached its own guidelines for the application
of the best evidence Rule by admitting the statement
without first requiring the Prosecution to call
witnesses to rebut the allegations of the Appellant
regarding the circumstances surrounding the taking
of the record of interview. In the guidelines issued
on the conduct of the trial the Trial Chamber stated
that:

19. The “best evidence rule” will be applied
in the determination of matters before this Trial Chamber.
This means that the Trial Chamber will rely on the
best evidence available in the circumstances of the
case and parties are directed to regulate the production
of their evidence along these lines. What is the best
evidence will depend on the particular circumstances
attached to each document and to the complexity of
this case and the investigations that proceeded it.26

19. The Appeals Chamber is not satisfied that the Trial
Chamber breached its own guidelines for application
of the best evidence Rule that witnesses must always
be called. The Guidelines reflect the large measure
of discretion that the Trial Chamber has to determine
under the Rule whether or not it is necessary, in
the particular circumstances of a case, to call
witnesses to establish the authenticity of a document
as the best evidence. Where that document is a record
of interview with an accused, and the Trial Chamber
is satisfied that the interview has been conducted
in compliance with Rule 63, which includes application
of the recording procedure of Rule 43, and adherence
to the caution requirements of Rule 42(A) (iii),
it is well within the discretion of the Trial Chamber
not to require further evidence of the circumstances
of that interview to establish its authenticity.

(ii) Voluntariness of the Interview

20. Next, the Appellant argues that prior to admitting
the record of interview of an accused, the Trial
Chamber had an obligation to ensure that it was obtained
voluntarily. The Appellant contends that the Defence
had argued at trial that the record of interview
was obtained by impermissible inducement and cannot
be said to have been obtained voluntarily as required
by the Rules. He claims that the Trial Chamber erred
in several respects in finding that there had been
no inducement on the part of the Prosecution, which
vitiated the voluntariness of the interview, rendering
it inadmissible.

21. The Appellant argues that the Appeals Chamber has
made clear that “a pre-requisite
for admission of evidence must be compliance by the
moving party with any relevant safeguards and procedural
protections and that it must be shown that the evidence
is reliable”.27 He says that the
argument of the Prosecution that viewing the interview
and reading the transcript
“provide proof beyond reasonable doubt that it was
voluntary” is incorrect. His
claim is that the inducement took place prior to the
interview. The Appellant argues further that contrary
to the claim of the Prosecution, the burden of proof
that the statements were made voluntarily rests squarely
on the Prosecution at all times.28

22. The Appellant claims that the actual content of
the interview is irrelevant to this issue and that
the Trial Chamber erred by stating that to vitiate
consent the inducement must be shown to have led
the accused “to make an admission, or in
other words, to incriminate himself”.29
He says that this proposition is wrong in law and that,
in any event, “the Trial
Chamber had to be satisfied that at least some of the
evidence contained in the record of interview was
incriminatory – and thus relevant to the charges – lest
the record of interview would become irrelevant and
therefore un-admissible pursuant to Rule 89(C).” 30

23. The Appellant argues that the promise of provisional
release in exchange for an accused’s full cooperation
or giving of an interview has been considered in
national jurisdictions to be a typical inducement
that would lead to the exclusion of the statement.31 The same applies to
the inducement that prosecution might be avoided if
an accused gives the Prosecution the information
it seeks. He claims that both of these inducements
were offered to him in this case.32 The Appellant
argues that it is not a requirement that the inducement
is agreed to by the parties. All that needs to be
shown is the communication of an inducement and the
understanding of it by the accused. He claims that
the Trial Chamber “erred when suggesting that
only where an “agreement” has been reached between
the prosecution and the Defence could there be said
to be an impermissible inducement”.33

24. The Appellant says that he is on record as claiming
that an inducement was offered and that the Prosecutor
herself recognised this. In a letter to the Defence,
the Prosecutor stated that:

I met Mr Balijagic and told him
that a full cooperation of Mr Halilovic could
have a positive influence on the Prosecution’s
position in respect to a potential application
for provisional release.

The Appellant says that while the Prosecutor denies
that the issue of withdrawal of the indictment had
been discussed, she does not address the issue of
whether that matter was raised at another time or
by others in her office in her letter. He says that
the Prosecution failed to provide his Defence team
with records of conversations between the Office
of the Prosecutor and Mr Balijagic despite repeated
requests by the Defence. The Prosecution’s response
was that no such records had been kept.34 However, the Appellant
claims that the fact that such an offer was made by
the Prosecution is supported and confirmed by the
statements made by him in his letter of 11 August
2004 to the Disciplinary Panel of the ICTY.35

25. The Appellant further claims that there is clear
evidence of an inducement having been offered in
the form of a conditional promise to withdraw charges,
set out in the record of interview itself. The Appellant
refers to the following exchange:

(Mr Halilovic): I would like to ask Mr Nikolai, I
was actually told by my attorney that an agreement
was reached with Ms Prosecutor, Carla Del Ponte concerning
our, that is my, cooperation with the Prosecutor,
that is with the prosecution and that in relation
to that certain agreements had been made.

However, obviously those agreements are not being respected
and before the continuation that a break be taken
so that my lawyer can have conversation in the Office
of the Prosecutor so that we confirm or deny what
we have agreed upon so that after that we could
take a decision on how to proceed.

I want to continue the cooperation with the ICTY and
that this in no way means the cessation of the cooperation,
but I would like to ask that a break be given so
that my lawyer can resolve this matter. We have,
and I have absolutely fulfilled all the requests
that were made to me by the prosecution and of course
I am ready to fulfil all the requests that the Prosecutor
sets to me with the aim of establishing the truth,
whatever it may be. But I wish to get an answer to
the question on the reached agreement so that we
know how to proceed.

(Mr Balijagic): Mr Investigator,
I have had four official meetings with Ms Carla
Del Ponte. We have made certain agreements. Let
me stress that I did not arrange the meetings
with Ms Del Ponte through the Registry but I
came upon her call. I had felt that one group
of the Prosecutor’s associates is influenced by Ms
Vasvija Vidovic. That’s why I asked Ms Del Ponte
whether her subordinates obey her, in realisation
of certain agreements with Ms Del Ponte who is the
Chief Prosecutor of this Court, so a person whose
word ought to be respected. I would ask you for
a shorter break, so that you can inform your superiors
so that we can clarify these matters. Will the word
of Ms Del Ponte be respected or not?! That’s why
I would like to ask you for a short break, until
we resolve this matter, and I would like to ask
you to inform Ms Del Ponte or the person who replaces
here, or Mr Patrick who is familiar with this
situation, or Mr Bob who also knows about this
situation and with whom I have had very correct
contacts, thanks you kindly.

The Appellant claims that none of the staff present
during the interview reacted to these comments,
and that in place of a denial, “which would have
been required of the prosecution had no such promise
been made, Mr Mikhailov, prosecution investigator, called for a break in the interview. He did not discuss
this matter when the interview started again awhile
later. There is no record of what was discussed,
if anything, during the break between Mr Balijagic
and OTP members”.36

26. The Appellant argues that while the Trial Chamber
acknowledged the incident in the Impugned Decision
it dealt with it inadequately. It noted that “after
the break the interview continued with no mention
from the Defence Counsel or the Accused of whether
any meeting took place or whether any clarification
in relation to the alleged agreements has been offered”,
and in so doing, the Appellant contends that it
committed two errors. It allegedly reversed the burden
of proof in that it reasoned that unless the Defence
was able to establish that its understanding of the
promise thought to have been made by the Prosecution
had not been clarified during the break, it should
not be presumed to have occurred. And “insofar as
it would have been for the prosecution to establish
that the matter was indeed clarified during the
break and that, despite that clarification, the accused
agreed to continue with the interview” no such inference
could be drawn on the evidence.37
The second error alleged by the Appellant is that,
regardless of what happened during the break in the
interview, the only inference available to the Trial
Chamber was that, at least up until that point in
the interview, the Appellant was participating in
that interview on the understanding that the charges
against him might be withdrawn. The Appellant argues
that at the very least the Trial Chamber should have
excluded the interview up until that point.38

27. The Appellant argues further that the only evidence
available to the Trial Chamber indicated that the
whole of the interview was affected by the indictment.
At an earlier stage of the interview Mr Balijagic
had indicated his understanding that the interview
was proceeding on the basis that the Prosecution
offered to withdraw the indictment should certain
circumstances be established by the interview. The
Appellant claims that at no time did the OTP staff
present react to that suggestion or deny that such
a promise had been made.39

28. The Appellant says that on 10 February 2003, the
matter was discussed again in open court. New counsel
for the Appellant, Mr Caglar, stated in open court
that the Appellant’s previous counsel Mr Balijagic
had informed him about the existence of an agreement
between the Prosecution and the Defence that under
certain circumstances, the indictment against the
Appellant would be withdrawn. 40

29. The Appellant says that at the same Status Conference
he also made it clear that the actions of Mr Balijagic
had been dictated by what he understood to be an
agreement with the Prosecution regarding the withdrawal
of the charges against him :

Before coming to this Status
Conference I spoke with Mr Balijagic I asked
him why he didn’t object – why
he hadn’t objected to the indictment because I wanted
to state something about it here and ask the Trial
Chamber to ensure that I didn’t
suffer because of what the lawyers failed to do.

His explanation was that he didn’t
object to the indictment, as he said, because
of operations which were in course with the Prosecution,
and also because he had reached an agreement
with the Prosecution according to which the indictment
would be withdrawn at a given moment in time.
And this agreement, Balijagic said, is an agreement
he reached with the chief Prosecutor, Carla Del
Ponte. This is something he stated in front of
witnesses on several occasions.

The Appellant claims further that the existence of
such a promise was also acknowledged by Mr Balijagic
in a letter to the Disciplinary Panel:

The representatives of the prosecution
said that, that is also a possibility and if
Mr Halilovic proves that he was not the commanding
officer of operation “Neretva
93” the prosecution shall withdraw the indictment.

The Appellant argues that it was only after these promises
of conditional support for provisional release and
withdrawal of charges had been made that he agreed
to be interviewed. The Appellant submits that it
was up to the Prosecution to establish that these
promises had no effect on his decision to be interviewed
and that it failed to do so.41

30. The Appellant also argues that the Trial Chamber
erred in denying his request for a voir dire hearing
on the basis that it was not necessary. He says
that that finding could be considered a breach of
the fair trial guarantee in that it denied the Defence
a fair opportunity to access evidence which might
have been relevant to its case in this matter. He
argues that not only did the Trial Chamber erroneously
place the burden of proof on him, but also disregarded
clear evidence of an absence of voluntariness and
prevented the Defence from obtaining further evidence
of that absence. The Appellant says that the voluntariness
of the interview was presumed by the Trial Chamber
and not proved by the Prosecution and that evidence
to the contrary was dismissed by the Trial Chamber
as irrelevant or insufficient, further evidencing
error on the part of the Trial Chamber.42

31. In Response, the Prosecution argues that the finding
of the Trial Chamber at paragraph 11 of the Impugned
Decision, that there is no evidence in support of
the Defence’s allegations of promises offered by
the Prosecution in relation to the Accused’s release
and/or as to a withdrawal of the indictment to induce
the Accused to give the interview, is plainly correct.43
It says that the evidence before the Trial Chamber
was uncontradicted, showing that the interview had
been taken in accordance with Rule 63 and that there
was no evidence from which it could find that the
interview was other than voluntary and taken in accordance
with the Rules. As such, it says that no error has
been established by the Appellant.44

32. With respect to the Appellant’s claim of error
on the part of the Trial Chamber in shifting the burden
of proof to the Appellant regarding the voluntariness
of the interview, the Prosecution says that the burden
always rested on it. However, it says that Rule 92
provides for a shifting evidentiary burden to the Appellant
once it is established that the requirements of Rule
63 were complied with. It argues that there was no
evidence before the Trial Chamber to establish that
the interview was other than voluntary.45 It
argues further that allegations of inducement made
by the Appellant were refuted by the Prosecution evidence,
and “from the mouth of Mr Halilovic himself, on tape, at the very end of the interview”.46
It further claims that at the status conference Mr
Halilovic stated that when he asked his lawyer why
he had not challenged the indictment he was told that
this was because discussions were being held with
the Prosecution by which the indictment could be withdrawn
at anytime. The Prosecution claims that this shows
that he was not aware of that alleged inducement until
some fourteen months after the interview had been
concluded.47

33. The Prosecution further refutes the arguments of
the Appellant that the Trial Chamber erred by suggesting
that only where an agreement had been reached between
the Prosecution and Defence could there be said
to be an impermissible inducement. It claims that
the Appellant misreads paragraph 16 of the Impugned
Decision which only finds “that the alleged statements
made by the Prosecution could not amount to inducements
that could induce the Accused to give information
that might contain self incriminating evidence”.
Accordingly, it claims that no error has been established
by the Appellant.48

Analysis

34. In the Impugned Decision, the Trial Chamber accepted
that the Prosecution had represented to the Appellant
that “a full cooperation of Mr Halilovic could have
a positive influence on the Prosecution’s position
in respect of an application for provisional release”.49 However,
the Trial Chamber reasoned that that statement could
not be considered an inducement because the Prosecution
did not offer a “promise of provisional release,
but only indicated to the Accused that in case
of full cooperation the Prosecution would favourably
support a potential application for provisional
release”, which may only
actually be granted by a Trial Chamber.50
The Trial Chamber bolstered this view by noting that
the Appellant was represented by Defence Counsel who
must have known that cooperation by an accused with
the Prosecution was not a necessary requirement to
a grant of provisional release.51

35. The Appeals Chamber does not agree that the Prosecution’s
inability to grant the Appellant provisional release
means that the Prosecution’s statement that full
cooperation by the Appellant “could have a positive
influence on the Prosecution’s
position in respect of a potential application for
provisional release” did not
amount to an inducement to the Appellant. Such a statement
is clearly an inducement because it provides the incentive
of a possible reward for cooperation. While cooperation
with the Prosecution is not a condition of provisional
release, non-cooperation is often cited by the Prosecution
as a ground of opposition to an application for provisional
release before the Chambers at this Tribunal. Decisions
of the Appeals Chamber have made it abundantly clear
that a first principle of this Tribunal is that “an
accused is not required to assist the Prosecution in
proving its case against them”52 by agreeing to be interviewed
by it. Nevertheless as this case shows, the Prosecution
has continued to use its influence over an application
for provisional release, e.g. by not opposing or even
supporting it- provided that the accused is informed
in advance that such support is never binding on the
competent Chamber -, to persuade accused that it is
in their interest to cooperate.

36. Accused at this Tribunal are charged with particularly
serious crimes. If convicted they can expect lengthy
sentences. Their trials are long and complex, and
it is generally to be expected that an accused person
will spend a number of years waiting for their trial
to commence. Detained at The Hague, accused are often
denied frequent contact with their families and
friends who are financially prevented from making
frequent visits from the former Yugoslavia. Taking
into account the context of this Tribunal, a statement
by the Prosecutor that it may not oppose an accused’s
application for provisional release can be a powerful
incentive for an accused to speak when he may otherwise
have chosen to remain silent. Accordingly, the Appeals
Chamber finds that the Trial Chamber erred in finding
that the statement of the Prosecution was not an
inducement to the Appellant to be interviewed.

37. However, whether the Prosecution’s inducement was
of an impermissible nature, i.e., whether it rendered
the participation of the Appellant in the record of
interview involuntary, is another issue. In the Impugned
Decision, the Trial Chamber found that the statement
of the Prosecution “was not such as to induce the Accused
to make an admission, or in other words, to incriminate
himself in return for the Prosecution support for
his application for provisional release”.53
The Trial Chamber based this finding on the fact that
from the time of his initial appearance on 27 September
2001, the Appellant made clear his intention to cooperate
fully with the Tribunal regardless of the impact of
that cooperation on findings against him.54 The
Trial Chamber also referred to the fact that in the
record of interview, the Accused stated at the end
that “no threat, promise
or inducement” had been made to him in order to
convince him to give the answers and the interview
had been fair and correct.55 On
the basis of this evidence, the Trial Chamber found “that
the position of the Prosecution at the time in relation
to the Accused’s application for provisional
release did not amount to an inducement that affected
the voluntariness of the interview
”.56

38. Prosecutorial offers that serve as inducements
to the accused’s cooperation
may, if the inducement is sufficiently powerful, render
statements made pursuant to that cooperation involuntary.
In other cases, however, the inducement is simply
an incentive; the fact that the accused may have
taken this incentive into account when deciding
whether to cooperate does not mean that the defendant
was not acting voluntarily. Under the circumstances
of this case, the Appeals Chamber is not satisfied
that the Trial Chamber erred in finding that the
statement of the Prosecution that the Appellant’s
cooperation “could have a positive influence on the
Prosecution’s
position in respect of an application for provisional
release” did not have the
effect of rendering the Appellant’s participation in
the interview involuntary. While that statement may
have provided an incentive to the Appellant to cooperate,
it is not unreasonable to conclude that it did not
have the effect of rendering that participation involuntary.

39. However, although the Prosecution’s statement may
not have been of such a nature as to coerce the Appellant
into cooperating with the Prosecution, it does not
undermine its nature as an inducement understood as
an incentive to cooperate. This was a relevant factor
to be considered by the Trial Chamber in considering
whether to permit the tender of the record of interview
from the bar table, and the Trial Chamber erred in
failing to take it into consideration when exercising
its discretion to admit the record of interview.

40. Further, the Appeals Chamber is not satisfied that
the Trial Chamber adequately dealt with the Appellant’s
claim that, prior to giving the interview, a statement
was given by the Prosecution that the indictment
might be withdrawn if the Appellant provided information
showing that that course was warranted. In dealing
with this allegation, the Trial Chamber noted that
at one point in the interview the Appellant and
his Defence counsel raised the issue of certain agreements
reached with the Prosecutor and asked for a break
in the interview in order to clarify whether those
agreements reached with the Prosecution were to
be respected.57 After
the break the interview continued without any clarification
on the record of what those alleged agreements were.
The Trial Chamber placed no emphasis upon this break
in the interview and the Appeals Chamber finds that
it erred in failing to do so. The break in the record
of interview indicated that the Appellant’s
cooperation was conditioned on his understanding that
certain agreements had been reached. This break in
the record and the statements made by the Appellant
and his counsel prior to that break provide some support
to the Appellant’s argument that he would
not have cooperated absent those agreements. The Appeals
Chamber is satisfied that the Trial Chamber erred
in failing to take this factor into account in its
assessment of the voluntariness of the interview.

41. The purpose of requiring that an interview with
an accused be recorded is to ensure that the accused’s
rights are respected at all times. Rule 43(ii) provides
that, in the event of a break in the course of questioning,
the fact and time of the break shall be recorded.
While the Rules do not explicitly require, when an
interview is stopped to address an on-the-record
question of the Appellant that clearly implicates
the potential non-voluntariness of the interview,
that the parties
“ get an answer to the question on reached agreement
so that we know how to proceed
”, the interview should recommence with a full explanation
of what has occurred in the break and what understanding
had been reached by the parties. It is only in this
way that the Chamber can be satisfied that the rights
of accused are in fact protected.

42. In determining that there was nothing improper
about what occurred in the interview, the Trial
Chamber relied upon statements made by the Prosecution
at a Status Conference to the effect that it had
never intended to withdraw the indictment, and a
letter from the Prosecutor that at her meeting with
Mr Halilovic on 11 October 2001, “the
issue of a potential withdrawal of the indictment against
Mr Halilovic was not even touched upon”.58 However, these statements
made after the fact cannot remedy the failure of
the Prosecution to ensure at the time of the interview
that the Appellant and his Counsel were not labouring
under the misapprehension that should the Appellant
cooperate and clear himself of the charges, there
was a possibility of a withdrawal of the Indictment
by the Prosecutor. Whether or not the Prosecution
did give such a statement is not clear; however,
on the evidence of the record of interview there
is a reasonable possibility that the Appellant was
labouring under that misapprehension, and the Prosecution
failed to avail itself of the opportunity to make
it abundantly clear in the record of interview that
this was not the case.

43. In the Impugned Decision, the Trial Chamber found
that the alleged statements made to the Appellant “could
not in any case amount to 'agreements’ that could
induce the Accused to give information that might
contain self-incriminating evidence, but merely
indicate the Prosecution’s intent to conditionally
withdraw the indictment should the evidence appear
insufficient to support its case”.59 In
making this finding, the Trial Chamber referred to
the statements made by the Defence that “promises
were made to Mr Halilovic that, should he fully cooperate
with the prosecution, (…) and (…) should he be able
to convince the prosecution of his innocence, the
indictment would be withdrawn,” and statements made
by Mr Balijagic in a letter to the Disciplinary Panel
of the Tribunal that “(t)he representatives
of the prosecution (had informed him) that (…) if Mr
Halilovic proves that he was not the commanding officer
of the 'Operation Neretva 93’ the prosecution shall
withdraw the indictment”.60

44. When a suspect is detained by police, it is quite
usual for the police in seeking to interview that
suspect to represent that should he or she be able
to provide evidence capable of casting doubt on
the suspicions of the police about his or her involvement
in an alleged crime, then the matter could be closed.
In that situation, there is nothing improper about
the police attempting to persuade a suspect to cooperate,
provided that the suspect is fully apprised of his
or her rights. However, when a person moves from
being a suspect to an accused, in most instances
the possibility of charges not being pressed is
lost. The indictment seeks to establish a prima
facie case, and the accused will be required
to meet that case at trial. This same situation
applies to accused charged at this Tribunal. The
confirmation of an indictment by a confirming Judge
pursuant to Rule 47 means that the Prosecution has
established a prima facie case against an
accused to the satisfaction of one of the Judges
at this Tribunal. Once that process has occurred,
for an indictment against an accused to be withdrawn,
the Prosecution must make application pursuant to
Rule 51 to the conforming Judge or a Judge assigned
by the President. It is not to be assumed that such
a withdrawal would be granted by a Judge without
that Judge being satisfied that continuation of
that prosecution is no longer warranted. In this
circumstance, it is not entirely clear whether the
Prosecution should be able to induce an accused
to cooperate by an offer of withdrawal of an indictment
without full explanation to the accused of what
that process entails. In any event, it is also not
clear whether such a statement could be said to have
the effect of rendering an accused’s participation
in a record of interview involuntary. In this case,
the Appellant claims that that was indeed the effect
of the Prosecution’s
statement.

45. The Prosecution strongly denies having offered
such an inducement and the Trial Chamber accepted
those denials. However, the Appeals Chamber has already
expressed its discomfort with the break in the interview
and lack of clarification following the break in
the interview. Upon this basis alone, the Appeals
Chamber is satisfied that the Trial Chamber erred
in failing to consider that the break in interview
did raise the reasonable possibility that the Appellant,
in giving the interview, was labouring under the
misapprehension that his cooperation could lead to
the withdrawal of the indictment against him. This
factor is relevant in considering whether it was
fair to the Appellant to allow the record of interview
to be admitted from the bar table. Accordingly,
the Appeals Chamber finds that the Trial Chamber
erred in failing to take this factor into account
in determining whether or not to admit the record
of interview.

46. Further, in light of the evidence raised by the
Appellant in relation to the voluntariness of the
interview, it was incumbent on the Trial Chamber
to fully explore the circumstances surrounding the
taking of that interview. While the Trial Chamber
itself did not refer to Rule 92 of the Rules61
it appears that the Trial Chamber was applying the
principle underlying that Rule in reaching its decision.
That Rule does permit the Trial Chamber to accept that
a duly recorded interview with an accused is voluntary,
moving the burden to establish otherwise to the accused.
In this case, however, the requested break in the interview
itself should have been sufficient to raise the concern
of the Chamber to explore more fully the voluntariness
of that interview. This does not necessarily require
the holding of a voir dire, although there
may be certain advantages in doing so.

(iii) Reliability of the Interview

47. The Appellant claims that the Trial Chamber failed
to make a finding as to whether the record of interview
was sufficiently reliable to be admitted and that
in failing to do so, the Trial Chamber erred.62 The
Appellant argues that the Trial Chamber’s error
seems to be based upon the erroneous view that the
reliability of an exhibit is relevant only to its weight
and not to its admissibility.63 The Appellant
says that precedent of the Appeals Chamber make clear
that this is not correct. Before admitting the record
of interview, the Trial Chamber must be satisfied that
the evidence is reliable and in considering its reliability,
it may consider both the content of the evidence and
the circumstances in which it arose.64

48. The Appellant says that if the Trial Chamber had
considered reliability, it would have found that
the record was not sufficiently reliable to be admitted.
He argues that such a finding would have necessarily
followed consideration of the circumstances in which
the interview was taken: (i) the inducement offered
to Mr Halilovic, (ii) length of the interview, (iii)
the fact that Mr Halilovic was imprisoned at all
times during the interview and was under the apprehension
that his release depended upon full cooperation
with the prosecution, including his being interviewed,
(iv) the fact that the prosecution did not keep any
records of meetings between members of the OTP and
counsel for the accused, and (v) lack of effective
representation on the part of counsel (see below).
The Appellant argues therefore that the Trial Chamber
erred in admitting the record of interview.65

49. The Appellant also claims that the Trial Chamber
erred when “after having examined
the content of the interview”, it found that “the admission
into evidence of the record of interview cannot be
considered contrary to the demands of a fair trial
”.66 The
Appellant claims that the Trial Chamber should have
excluded the record of interview pursuant to Rule
89(D) as being unfair to him. The Appellant says that “not
being able to explain, qualify or otherwise comment
on the evidence contained in the record where necessary, short of renouncing his right to silence, Mr Halilovic
is being gravely prejudiced
”.67

50. Taking account of all these circumstances, the
Appellant says that the Trial Chamber should have
exercised its discretion pursuant to Rules 89(D)
and 95 and excluded the record of interview, “both
to ensure a fair trial for the accused and to prevent
the admission of evidence obtained by methods which
cast substantial doubt on its reliability and damage
the integrity of the proceedings”.68
The Appellant says that the Trial Chamber erred in
failing to do so and that the Appeals Chamber can
exercise those powers for itself and should do so in
this case.69

51. In Response, the Prosecution argues that the complaint
of the Appellant is a failure on the part of the
Trial Chamber to explicitly state that it found the
interview to be reliable before admitting it into
evidence. It argues that it is implicit in the Impugned
Decision that the Trial Chamber did consider the
interview, once it determined it to be voluntary
to also be reliable. It says that no error has been
demonstrated by the Appellant.70 With
respect to the argument of the Appellant that the
Trial Chamber erred in failing to exercise its discretion
to exclude the interview pursuant to Rules 89(D)
and 95, the Prosecution argues that this is a discretionary
exclusion whereby an otherwise relevant and probative
piece of evidence may be excluded “if
its probative value is substantially outweighed by
the need to ensure a fair trial”.71
It says that the Appellant has failed to identify how
the Trial Chamber erred in failing to exclude the
interview on discretionary grounds once it had determined
that it was voluntary and thus relevant and probative.72

Analysis

52. In the Impugned Decision, the Trial Chamber found
that the record of interview was admissible because
it had been conducted in full accordance with the
relevant Rules and that no inducement had been offered
to undermine the voluntariness of the interview.73 As such, the Trial
Chamber was satisfied that the interview was sufficiently
reliable for it to be admissible.

53. Further, in light of the circumstances found by
the Trial Chamber, Rule 95, which provides: “no
evidence shall be admissible if obtained by methods
which cast substantial doubt on its reliability
or if its admission is antithetical to, and would
seriously damage, the integrity of the proceedings,” was
inapplicable as a basis to exclude the record of
interview.

54. However, the Appeals Chamber has found that the
Trial Chamber erred in failing to consider that
the statement to the Appellant by the Prosecution
that his cooperation with it could have a positive
influence on the Prosecution’s position regarding
any application he may make for provisional release
did constitute an inducement and that it erred in
failing to take into account the break in the interview
as establishing the reasonable possibility that
the Appellant was labouring under some misapprehension
as to the possible outcome of his agreeing to be
interviewed. Accordingly, the Appeals Chamber finds
that the Trial Chamber erred in failing to take into
account relevant considerations when exercising
its discretion to admit the record of interview.

(iv) Ineffective Representation by Counsel

55. Finally, the Appellant argues that the Trial Chamber
erred in finding that the Accused was effectively
represented by his Defence Counsel at the time of
the interview. The Appellant says that the Trial
Chamber failed to consider any of the evidence presented
by it concerning the incompetence of Mr Balijagic
and that the Trial Chamber erred when failing to
consider that evidence and attach weight to it.74
He claims further that the Trial Chamber erred in concluding
that he was effectively represented at the time of
giving the interview. He says that the general incompetence
of Mr Balijagic is duly recorded. On 29 October 2002,
Prosecution lead counsel stated that:

On the Defence side, as you know, Your Honour, nothing,
literally nothing happened other than what can be
described as a total mess caused by the accused and
his previous Defence counsel, Mr Balijagic.75

The Registrar’s decision to withdraw Mr Balijagic as
counsel for the Appellant stated that:

CONSIDERING that in view of the incoherent and
partly conflicting statements of Mr Balijagic regarding
his representation, and the other available information
which seems to put in doubt the quality of the representation
of the accused by Mr Balijagic, it does not appear
that the accused is adequately represented at this
time and that this situation could have adverse consequences
for the accused;76

The Appellant says that Mr Balijagic asked to withdraw
from the case on 12 April 2002, due to his difficulty
in representing the Appellant’s interests.77

56. The Appellant claims that Mr Balijagic failed to
file any motion on the form of the indictment on
the basis that the indictment would be withdrawn
and took no other steps to make the case trial ready.
He argues that the few steps he did take proved
to be contrary to his interests and gives the example
of an agreement concluded by Mr Balijagic with the
Prosecution in relation to “agreed facts” which was
declared void by the Trial Chamber at the pre-trial
stage on the basis that the Appellant had not been
effectively represented at the time.78

57. The Appellant claims further that the participation
of Mr Balijagic during the record of interview was “inappropriate
and ineffective” and that his interventions
“were for the most part unprofessional and incoherent,
at times verging on the irrational
”.79 Accordingly,
he says that contrary to the findings of the Trial
Chamber the representation of Mr Balijagic “was in
fact destructive and contrary to his clients best
interests”.80
The Appellant says that the Trial Chamber failed to
consider all the evidence showing the incompetence
of Mr Balijagic and erred in concluding that he was
effectively represented at the time of the interview.
He argues that the Appeals Chamber should exercise
its discretion and exclude the record of interview.81

58. The Appellant further claims that the Trial Chamber
erred in failing to render a reasoned opinion on
the issue of his representation by Mr Balijagic and
that this failure breached his entitlement to a
reasoned opinion under the Statute of the Tribunal
and international law in general.82

59. The Appellant argues that in determining whether
the record of interview was voluntary, the Trial
Chamber should also have considered the absence of
effective representation. The Appellant claims had
it done so, it could not have admitted the record
of interview. He refers to an analogous situation
in Blagojevic et
al in which doubts were raised about the effectiveness
of the representation of Mr Jokic at the time he was
interviewed by the OTP. The Appellant says that the
Trial Chamber properly found in that case that:

it is unable to rely on the interviews
with Dragan Jokic as an indisputably reliable
source of information upon which to determine
issues in this case and has concerns in relation
to Mr Jokic’s
legal representation at the interviews, the Trial
Chamber declines to admit the statements into evidence
at this stage.83

The Appellant says that the Trial Chamber should have
made the same finding in his case and erred by not
doing so.84

60. In Response, the Prosecution says that the Appellant
actually produced no evidence to establish that
Mr Balijagic provided incompetent representation
during the interview.85 It
argues that the Registrar’s
decision withdrawing Mr Balijagic’s representation
contains nothing of relevance to the Appellant’s
representation during the interview. It says that
there is no error in the Trial Chamber’s finding
that the record of interview “shows that the
Accused was effectively represented by Defence counsel”.86
The Prosecution argues further that the pre-trial record
shows effective representation by Mr Balijagic in
making his provisional release application.87

Analysis

61. In finding that the Appellant was sufficiently
represented by Defence Counsel, the Trial Chamber
noted that at the time of the interview, the Appellant
was assisted by a Defence Counsel of his own choosing
and assigned by the Registrar.88
It found that he was informed of his rights in the
presence of his Counsel and understood that any statements
that he made may be used in evidence against him and
that he was effectively represented throughout the
interview.89 However,
while making these findings, the Trial Chamber did
not address the issue of Mr Balijagic’s actual
competence to adequately represent the interests of
the Appellant or explain why it did not consider that
the evidence adduced by the Defence of Mr Balijagic
incompetence was insufficient to establish that fact.

62. On the evidence placed before the Trial Chamber,
the Appeals Chamber is not satisfied that the Trial
Chamber gave sufficient weight to the evidence showing
Mr Balilagic to be incompetent to represent the
interests of the Appellant. Both the statements
of the Prosecution and the decision of the Registrar
to withdraw Mr Baliljagic as assigned Counsel to
the Appellant clearly indicate that Mr Balijagic
was incompetent to provide effective representation
to the Appellant. Indeed, the Registrar’s Order
explicitly states that the withdrawal is based upon “available
information which seems to put in doubt the quality
of the representation of the accused” and states
that “it does not appear that the accused is adequately
represented
”. It cannot be reasonably assumed, as it appears
that the Trial Chamber did presume, Mr Baliljagic
developed his incompetence at some time after the interview.
Accordingly, the Appeals Chamber is satisfied that
the Trial Chamber erred in failing to take this factor
into account in exercising its discretion to admit
the record of interview.

Conclusion

63. The Appeals Chamber finds that the Trial Chamber
erred in failing to take into account three relevant
considerations. The Trial Chamber failed to take
into account that the Prosecution’s statement regarding
its possible position concerning a future application
for provisional release was an inducement, even though
it was not of such a nature that coerced or overbore
the will of the Appellant but acted as an incentive
only. The Trial Chamber also failed to take into
account the lack of clarification of the discussion
that occurred regarding “agreements” with the Prosecution
during the break in the record of interview and
the reasonable possibility that the Appellant was
labouring under the misapprehension that the indictment
may be withdrawn should he cooperate. And the Trial
Chamber failed to take into account the inadequate
representation of the Appellant by Defence Counsel
at the time of the record of interview.

64. Where the Appeals Chamber is satisfied that a Trial
Chamber has erred, the Appeals Chamber may substitute
the exercise of its own discretion for that of the
Trial Chamber if it considers it appropriate to
do so. In the ordinary case involving an evidentiary
question before a Trial Chamber, the Appeals Chamber
may consider sending the matter back to the Trial
Chamber with an order that it consider the factors
identified as relevant by the Appeals Chamber and
exercise its discretion afresh. In this case, however,
the parties are awaiting the Appeals Chamber decision
so that they may file their final submissions and
close the trial. Accordingly, the Appeals Chamber
has determined that it is more appropriate in this
instance for it to substitute its discretion for
that of the Trial Chamber.

65. Taking into account all of the circumstances, and
considering the relevant factors identified above
that the Trial Chamber failed to properly consider,
the Appeals Chamber has determined to exercise its
discretion pursuant to Rule 89(D) and exclude the
record of interview from the Trial record in the
interests of fairness to the Appellant. The Trial
Chamber is therefore ordered to expunge the record
of interview from the trial record.

Disposition

66. The Appeal is allowed and the record of interview
rendered inadmissible in the trial of the Appellant.